This week's Legal Currents column, which is published in The Daily Record, is entitled "The high price of partisan politics." The article is set forth in full below and a pdf of the article can be found here.

Gideon v. Wainwright, 372 U.S. 335 (1963),
states in part: "[R]eason and reflection
require us to recognize that in our
adversary system of criminal justice, any person haled into court, who is too poor to hire a
lawyer, cannot be assured a fair trial unless
counsel is provided for him. This seems to us to be an obvi-
ous truth. Governments, both state and federal, quite prop-
erly spend vast sums of money to establish machinery to try
defendants accused of crime. Lawyers to prosecute are
everywhere deemed essential to protect the public's interest
in an orderly society."

The Monroe County Public Defender selection process,
still unsettled, is causing angst within the legal community
as well as the community at large.

The Monroe County Bar Association has proposed a
bipartisan panel — consisting of three lawyers, three
judges and three members of the community — to review a
pool of applicants and make a recommendation to the
county Legislature.

Wayne Zyra, president of the Legislature, has rejected the
MCBA's proposal in favor of what many believe is a blatantly partisan selection process.

As acknowledged in Gideon v. Wainwright, the seminal
U.S. Supreme Court decision that established the right of
every accused person to an attorney, prosecuting criminal
cases is costly. Monroe County is no exception.
Unfortunately, the county will be required to spend even
more money to prosecute crimes if Zyra remains firm in his
decision to forego the public defender selection process
utilized 30 years ago.

The basis for my assertion is simple: Excluding community members from the selection
process will further erode indigent defendants'
already shaky sense of trust of assigned
defense counsel, resulting in an increase in
costly trials.

I speak from experience. An oft-repeated
refrain from my clients when I was a Monroe
County Assistant Public Defender was that I
worked in collusion with the judge and assistant district attorney. More often than not, this
accusation was made during the plea bargaining stage of a case.

The basis for this assumption was understandable. The
judge, the ADA and I received paychecks from the "government," therefore our motives must be the same. In other
words, my goal in advising the client of the plea offer and
the weaknesses in our defense was to get the client to plead
guilty, at the behest of the judge and prosecutor. It was one
of the most difficult — and distressing — misconceptions to
overcome as assigned defense counsel.

Trust is the basis of a good relationship between an attorney and his or her clients. In the absence of trust, clients are
disinclined to listen to the recommendations of defense
counsel. They tend to insist on costly trials despite the existence of a strong case against them, the rationale being that
there's a better chance of a fair outcome if jurors, indepen-
dent of the system, hear the case.

The selection process proposed by Zyra will serve only to
erode further indigent defendants' belief that defense counsel assigned to represent them will provide fair and impartial advice. The end result will be fewer pleas, more time-
consuming and expensive jury trials and, in the end, greater
taxpayer expense.

If taking more money from the pockets of Monroe County
taxpayers is Zyra's goal, then he's on the right track. Otherwise, a bipartisan
panel with community input is the only feasible option to pursue.

In People v VanPatten, 2007 NY Slip Op 10408, the defendant was convicted after jury trial of Making a Terrroristic Threat in violation of Penal Law 240.20. The defendant, while in custody on a parole violation, was accused of writing a letter to the Madison County District Attorney threatening the lives of the DA and his family unless he stopped prosecuting crimes violating Article 49 of the Penal Law. The only person being prosecuted pursuant to that Article at the time the letter was sent was the defendant's biological father.

The defendant, who was incarcerated at the time, allegedly confessed to writing the threatening letter when speaking with a police investigator. The confession occurred after the investigator informed Mr. VanPatten of the lengthy list of questions he intended to ask regarding the letter. Following the initial "spontaneous" confession, the investigator advised him of his Miranda rights and he confessed again.

The Third Department held the trial court should have suppressed the entire confession:

When "the circumstances of the detention and interrogation of a prison inmate . . . entail added constraint that would lead a prison inmate reasonably to believe that there has been a restriction on that person's freedom over and above that of ordinary confinement in a correctional facility, Miranda warnings are necessary" (People v Alls, 83 NY2d 94, 100 [1993], cert denied 511 US 1090 [1994]; see People v Ward, 241 AD2d 767, 768 [1997], lv denied 91 NY2d 837 [1997]). Here, the interrogation of [*3]defendant at the detention facility which took place in a classroom with correction officers standing outside the door while defendant was not permitted to leave on his own was custodial in nature...In our view, Nell's explanation to defendant regarding why he wanted to speak with defendant was the functional equivalent of interrogation and, thus, County Court's determination that the statement was spontaneous is not supported by the record (see People v Vaughn, 275 AD2d 484, 487 [2000], lv denied 96 NY2d 788 [2001])...The entire interview took place over the course of approximately 30 minutes in a single location, without any break in questioning, and was, as Nell testified, "just [*4]one continuous process." Thus, defendant's warned statements were obtained as part of a "single continuous chain of events" and must also be suppressed.

What confounds me about this case is that the cops didn't play by the book given the strength of the evidence against the defendant.

The threatening letter "included defendant's full name, prison identification number and the address of the detention facility where defendant was held on unrelated parole violation charges", "fingerprints found on the letter were traceable to defendant" and the defendant's father was the only person currently facing charges for the crime mentioned in the letter.

Seems like a slam dunk even without the confession. Now they're back to square one. That'll learn 'em.

n. a person who uses an agent for his/her negotiations with a third party, often when the agent pretends to be acting for himself/herself. As a result, the third party does not know he/she can look to the real principal in any dispute.
See also: principal agent.

I recently discovered a summary of recent New York criminal law decisions handed down during the second half of 2007, authored by Albany attorney Michael P. McDermott from the law firm
O’Connell and Aronowitz that might be of interest to those of you who handle criminal matters. The summary can be found here.

The following is an excerpt from the January 2008 summary:

Multitasking?

Trying to juggle a hectic practice?

In the middle of a murder trial but still need to attend that real estate closing? Relax, the jury can wait.

In People v. Ortiz 1, defendant was convicted of murder and attempted murder. He received a cumulative sentence of 30 years to life. On appeal, defendant argued that he was deprived of conflict-free and effective representation because jury deliberations were suspended for an afternoon so that his attorney could attend a closing.
The First Department rejected defendant’s claim, characterizing the adjournment as a “routine scheduling conflict” and affirmed the conviction.

For those of you foolhardy enough to try this in Albany County… please do not mention that you read this in the newsletter.
“But Judge… I want to keep the sleeping juror!”

The trial court dismissed as “grossly unqualified” a juror who repeatedly appeared to be sleeping during the course of the trial. 2 When questioned after the first observed snooze, the juror admitted that she was tired, but claimed to be paying attention to the proceedings. It was only when the juror’s head snapped back several times during the charge that the court dismissed the juror over the defendant’s objection, without making further inquiry.

The First Department found no error, finding that additional questioning was unnecessary under the circumstances.

Cliffhanger Resolved

For those of you actually in suspense over the resolution of People v. Greene (first discussed in the November newsletter), read on.
You may recall that the issue in Greene was whether evidence obtained in violation of the physician-patient privilege, which lead to the identification of a murder suspect, warranted suppression of the identification. The Appellate Division thought not.

In affirming, the Court of Appeals held that there is no constitutional right to privacy in physician-patient communications. The Court reasoned that it is a physician’s duty to safeguard the privilege and to suppress the evidence would be to punish the State for the misconduct of the physician or hospital. 3

No Courtroom for a Crime

In People v. Zimmerman, 4 the Court of Appeals handed down a decision with a most curious result.

Zimmerman, was the result of the Attorney General’s probe into alleged violations of the Donnelly Act (New York’s antitrust law) by Federated Department Stores. In the course of its investigation, the AG’s office deposed Mr. Zimmerman (CEO of Federated) in Ohio.

Believing that Mr. Zimmerman lied during the course of his deposition, the AG convened a grand jury in New York County to consider perjury charges. The grand jury returned an indictment charging Zimmerman with Perjury in the First Degree.

While the alleged perjury obviously occurred in Ohio, the defendant conceded New York had jurisdiction pursuant to CPL 20.20 (2) (b). That statute confers jurisdiction when the underlying criminal offense is designed to prevent the occurrence of a particular effect in this state and the conduct was committed with the intent that it would have such an effect.

However, the defendant took issue with New York County as the venue for the action. The AG’s office argued that “particular effect” venue pursuant to CPL 20.40 (2) (c) rendered New York County the proper venue since any prosecution generated by the underlying investigation would have been commenced in that county.
While the statutes defining the “jurisdiction” of the State (CPL 20.20) and the “jurisdiction” of counties (CPL 20.40) are similar, there are important (and probably unintended) differences. For a county to have jurisdiction (i.e. proper venue), under the “particular effect” theory, the county itself (not the state of New York as a whole) must suffer a particular effect of the defendant’s alleged misconduct.

Because there was no proof that New York County, as opposed to the State as a whole, suffered from Zimmerman’s alleged perjury, the indictment was dismissed.
In the words of Judge Ciparick, writing for the majority: “it is lamentable that, although defendant’s acts admittedly could have caused a “concrete and identifiable” injury to New York State generally, there is not a single county in the State where this prosecution could be brought given the current statutory scheme.”

adj. defining something which may be terminated upon the occurrence of a particular event, used primarily to describe an interest in real property, such as a fee simple determinable, in which property is deeded to another, but may revert to the giver or go to a third person if, as examples, the receiver (grantee) marries, divorces or no longer lives in the house.

Jim Rose was kind enough to offer a guess, but was a bit off the mark.

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